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Ontario midwives welcome ‘historic’ victory in pay equity case

Ontario midwives won a “historic” victory in a groundbreaking pay equity case Monday, after a tribunal ruled the government’s failure to proactively monitor midwives’ compensation and regularly negotiate with them over it constitutes discrimination.

The case filed at the Human Rights Tribunal of Ontario five years ago sought redress, including retroactive pay, for gender-based pay discrimination dating back to 1994, shortly after midwifery became a formally regulated part of Ontario’s public health system.

Lawyers for the Association of Ontario Midwives (AOM) argued that the profession has been chronically undervalued due to a unique “gendered trifecta” in a field that is primarily staffed by women, is concerned with providing care to women, and deals with a health care issue associated with women.

In Monday’s ruling, tribunal chair Leslie Reaume called that description “very apt,” and ruled that there was sufficient evidence to prove gender-based discrimination between 2005 and 2013, but not earlier.

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Although the AOM’s application sought a remedy dating back to 1994, policy and communications director Juana Berinstein said the decision felt like a “completely historic win.”

“It feels like a victory for midwives, for women, for equity-seeking groups. It feels like an incredible decision that really talks about systemic discrimination,” she said.

The tribunal has not yet set out any remedies but has directed the parties to negotiate a resolution over remedial pay, damages, and how compensation will be set going forward.

In 1993, the Ontario government used a pay equity analysis to set midwives’ rate of pay at 65 per cent of a community health care physician’s salary. The tribunal ruled that 2005 was the last time the government applied a gender equity lens to midwives’ pay increases.

In 2010, a report commissioned by the AOM and the Liberal government of the time found that midwives should get a 20 per cent compensation bump. The report also warned that “intermittent” or delayed negotiations with midwives were hurting their compensation.

The recommended pay increase was never implemented. Instead the government “unilaterally determined that (community health care) physicians were not appropriate comparators for midwives,” according to Monday’s tribunal decision, thereby abandoning a long-established means of determining fair compensation for midwives.

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“This perpetuates the historic disadvantage midwives have experienced as sex-segregated workers. It also undermines the dignity of midwives who now find themselves having to explain why they should be compared to physicians for compensation purposes more than 20 years after this principle was established,” the decision reads.

The implication is that government must regularly take proactive steps to monitor compensation for the impact of gender discrimination on the fairness of pay.

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In its application, the AOM said while “male-dominated” community health care physicians’ salaries had increased by 76 per cent since 1993, midwives’ pay increased by only 33 per cent.

“My finding ... is that there is sufficient evidence to find that sex was, more likely than not, one of the factors that explains the difference in compensation levels between midwives and CHC physicians,” Reaume’s decision reads.

“While it’s not just about pay, pay is a concrete example of how we are valued in the system,” said AOM president Elizabeth Brandeis. “So it’s hard not to internalize that in terms of midwives seeing their own worth in relation to their medical colleagues and vice versa.”

In its response to the tribunal application, the Ministry of Health argued the case was about “occupational status, not sex.”

Its factum said the pay gap was based not on sex but on “important differences” between the work of community health care physicians and midwives, including the length and cost of physicians’ training and their “broader scope of practice.”

Reaume’s decision notes that midwives’ practice in Ontario has “been expanded to take advantage of their remarkable skill set and to respond to changing health care priorities, underserviced communities and vulnerable patient populations.”

“What makes the position of the (Ministry of Health) even more difficult to accept is that it promotes family physicians and midwives as comparable obstetrical providers, equally competent to care for women with normal pregnancies,” the decision reads.

The AOM has about 1,000 members in the province. Midwifery is a four-year bachelor of health sciences degree and students are trained in reproductive science, physiology and women’s health. Last year, Ontario midwives supported 24,066 births, or 16 per cent of all births in the province.

Katrina Kilroy, president of the Canadian Association of Midwives, said she simply wants the health care system to treat her profession with respect.

“Nobody does the equivalent job of a midwife. We’re on call 24-7. We sometimes work 24 hours straight. We’re with someone on the most painful day of their lives,” she said. “It’s a matter of life and death.”

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